United States Court of Appeals

For the First Circuit

No. 15-2529
PIERRE RICHARD LEGAL,
Petitioner,
v.
LORETTA E. LYNCH,
United States Attorney General,
Respondent.

PETITION FOR REVIEW OF AN ORDER OF

THE BOARD OF IMMIGRATION APPEALS

Before
Howard, Chief Judge,
Torruella and Lynch, Circuit Judges.

Carlos E. Estrada on brief for petitioner.

Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, Civil Division, Cindy S. Ferrier, Assistant Director,
Tracie N. Jones, Trial Attorney, Office of Immigration Litigation,
Civil Division, U.S. Department of Justice, on brief for
respondent.

September 23, 2016

HOWARD, Chief Judge.

Petitioner Pierre Richard Legal,

a native and citizen of Haiti, asks us to review a Board of

Immigration Appeals (BIA) order denying his claims for asylum,
withholding of removal, and protection under the United Nations
Convention Against Torture (CAT).

The BIA upheld an immigration

judge's (IJ) finding that Legal's testimony was not credible

and, thus, that he was unable to establish eligibility for relief.
After careful consideration of the briefs and the record, we deny
the petition.

I.
Legal entered the United States on August 9, 2011 without
a valid entry document and applied for admission.

The next day,

a Department of Homeland Security ("DHS") officer interviewed

Legal about his application for admission.

During the interview,

Legal said that he understood the interpreter and the questions

asked and that his statements were true and complete.
Legal

initially

claimed

that

he

departed

Haiti

for

Mexico on April 20, 2010 to avoid further persecution due to his

political opinion.

He explained that he was a "simple member" of

the "Plateform Organisation des Mines" and that members of the

opposing political party, Lavalas, had harassed him.

Legal stated

that he had received approximately seven telephonic death threats,

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which began a week before his April 20th departure, but that he
was never physically harmed.
Although Legal had earlier told the DHS officer that he
obtained a visa in May 2010 to travel to Mexico in order to avoid
persecution, later in the interview he claimed that he obtained
the visa in March 2010 in order to "leave the country and find a
job and bring my family."

The DHS officer clarified, "[T]he

purpose of you getting a Mexican visa was not to avoid persecution

like you stated previously?"

Legal replied that "the purpose was

to leave the country and find work."

He admitted that he remained

in Mexico for sixteen months and then attempted to enter the United
States because he "was not doing well in Mexico to take care of
his family."
The DHS commenced removal proceedings against Legal by
filing a Notice to Appear ("NTA") charging him as removable
pursuant to Immigration and Nationality Act 212(a)(7)(A)(i)(I),
8 U.S.C. 1182(a)(7)(A)(i)(I).

In response, Legal sought asylum,

withholding of removal, and protection under the CAT.

In his asylum application, Legal claimed that he had
suffered past persecution and feared future persecution because of
his work as a grassroots leader in the Konvansyon Inite Demokratik
("KID"), a Haitian political party.

He stated that on April 14,

2002, eight years before he left Haiti, he endured a beating at

the hands of five Lavalas members as a result of his involvement

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in the KID.

He described a further incident two years later in

which, while he was driving for work, fifteen masked men stole his
car, shot at him, and left him on the street.

In his application,

Legal indicated that he began receiving threatening phone calls in

March 2010.

He claimed he left Haiti to avoid any further

mistreatment but acknowledged that he left Mexico because he was

not making enough money to support his family.
On March 3, 2014, Legal appeared with counsel before an
IJ for his merits hearing.
and

his

testimony

application.

was

Legal testified as the only witness,

generally

consistent

with

his

asylum

Legal contended that he went to Mexico to save his

life and give security to his family; he denied that he went to

Mexico to look for work.

Legal admitted that he did not tell the

DHS officer anything about the KID.

did

not

remember

being

He claimed, however, that he

questioned

about

any

political

organizations, nor did he remember denying that he was physically

harmed in Haiti.

He also stated that he may not have understood

the interview questions because he was under stress at the time,

and the interpreter was available only by telephone.
Following the hearing, the IJ denied Legal's claims for
relief. The IJ premised his decision on a finding that Legal's
testimony

lacked

credibility.

The

IJ

detected

bevy

of

discrepancies between Legal's sworn statement to the DHS officer

on

the

one

hand

and

his

written

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application

for

asylum,

supplemental affidavit, and hearing testimony on the other.

The

IJ gave more weight to the sworn statement, since it was prepared

immediately

upon

application

was

Legal's
prepared

apprehension,
much

more

whereas

recently

"his

and

asylum

after

the

respondent had time to come up with the story which he tells

today."
The
emphasizing

BIA

that

adopted
Legal

and

affirmed

provided

the

inconsistent

IJ's

decision,

statements

with

respect to the political organization with which he was affiliated

and the extent to which he participated, as well as whether he was
physically harmed as a result.

The BIA also agreed with the IJ

that Legals sworn statement to the DHS officer was entitled to

more weight than his subsequent representations and that Legal
failed

to

demonstrate

past

persecution

or

fear

of

future

persecution on account of a protected ground.

This timely petition for review followed.

II.
Legal challenges the BIA's upholding of the IJ's adverse
credibility determination and resulting denial of his claims for
relief.

Where, as here, the BIA adopts the IJ's decision and

reasoning,

we

review

both

decisions

substantial evidence standard.

under

the

deferential

Conde Cuatzo v. Lynch, 796 F.3d

153, 156 (1st Cir. 2015). Under this standard, we will not reverse

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"unless 'the record would compel a reasonable adjudicator to reach

a contrary determination.'"

Id. (quoting Ying Jin Lin v. Holder,

561 F.3d 68, 72 (1st Cir. 2009)).

In

order

to

qualify

for

asylum,

an

applicant

must

establish either past persecution or a well-founded fear of future

persecution if repatriated, on account of one of five enumerated
grounds,

including

1101(a)(42)(A).

political

opinion.

See

U.S.C.

Although an asylum applicant's own testimony may

be adequate to meet this burden, an IJ may discount or disregard

testimony if the IJ reasonably deems it to be "speculative or
unworthy of credence."

Bebri v. Mukasey, 545 F.3d 47, 50 (1st

Cir. 2008) (decided under the prior "heart of the matter" rule).
Thus, "an adverse credibility determination can prove fatal" to an
asylum claim.

Id. (quoting Pan v. Gonzales, 489 F.3d 80, 86 (1st

Cir.

Further,

2007)).

determination

on

factfinder

inconsistencies,

may

base

inaccuracies,

credibility

or

falsehoods

"without regard to whether [any such inconsistency, inaccuracy, or

falsehood] goes to the heart of the applicant's claim."

8 U.S.C.

1158(b)(1)(B)(iii).1
Here, ample evidence supports the IJ's finding that
Legal's various statements were inconsistent.

E.g., Conde Cuatzo,

Because Legal's application postdates the enactment of the

REAL ID Act, Pub.L. 10913, 119 Stat. 302 (2005), the
credibility definition at issue here is subject to that Act.
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796 F.3d at 155156 (applying the substantial evidence standard to

an adverse credibility determination).

In his sworn statement to

the DHS officer the one closest in time to the alleged beating
Legal stated that he was never physically harmed in Haiti.
Additionally, he stated that his reason for going to Mexico was to
"find work" and failed to mention his participation in the KID.
It was only in Legal's application for asylum and his meritshearing testimony, after the initiation of removal proceedings,
that he claimed he was a member of the KID, had been beaten by
Lavalas supporters, had the car he was driving stolen at gunpoint,
and had traveled to Mexico to save his life.

The record thus

supports the IJ's conclusion that Legal's various statements were

"directly at odds."
The mere fact that a detail is omitted from a DHS
interview but is included in subsequent submissions does not
necessarily

warrant

an

adverse

credibility

finding.

Cf.

Kartasheva v. Holder, 582 F.3d 96, 106 (1st Cir. 2009) ("Standing
alone, the omission of [two fines] during the asylum interview did
not render the petitioner incredible.").

Yet, the inconsistencies

noted by the IJ are of a type that create strong doubts about the
veracity of Legal's story.

Cf. Conde Cuatzo, 796 F.3d at 156

(upholding an IJs adverse credibility finding when the IJ cited

inconsistencies between petitioners sworn statements).

Simply

stated, Legal "has told different tales at different times."

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Munoz-Monsalve v. Mukasey, 551 F.3d 1, 8 (1st Cir. 2008).

Under

such circumstances, an IJ is entitled to "sharply discount" a

petitioner's testimony.
these

omissions,

the

Id.
IJ

Although Legal attempted to explain

was

not

obligated

to

credit

his

explanations. Rivas-Mira v. Holder, 556 F.3d 1, 5 (1st Cir. 2009).

"Once

we

accept

the

[IJ's]

adverse

credibility

determinationas we mustthe petitioner's case collapses."

6.

Id. at

Without Legal's own testimony, the record does not show that

he was targeted on account of his political beliefs.

Accordingly,

we conclude that substantial evidence supports the agency's asylum

determination.

As Legal seeks remand of only his asylum claim, he

has waived his withholding of removal and CAT claims.

In any

event, the same credibility problem undermines those claims, and

we would reach the same conclusion as to them.
Consequently, we deny his petition for review.

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